Wineries often overlook harassment liability

Kelly Matayoshi is an associate in the Employment and Business Litigation groups at Farella Braun + Martel, which has San Francisco and St. Helena offices.

VINE NOTES KELLY MATAYOSHI, VINE NOTES BY KELLY MATAYOSHI

Harassment training is important in all workplaces, yet is often overlooked at wineries. However, wineries can be hotbeds for harassment suits.

With the informal atmospheres prevalent in wineries come lax procedures and the stifling of complaints. This situation is worsened because winery employees often are lack the same type of harassment training that is now customary in the standard office setting. While the fact that many winery employees are in the fields, working in drastically different settings, or are seasonal may make harassment training seem difficult to do or unnecessary, overlooking such training can have rippling and costly consequences.

Harassment complaints are common in California. Harassment can be difficult to define and identify but includes unwelcome conduct based on race, color, religion, sex, national origin, age, and disability or genetic information. Such behavior becomes actionable when it is so severe or pervasive that a “reasonable person” would consider it a hostile or abusive environment or if putting up with the harassment becomes a condition of employment. Due to their diverse workforce, wineries are particularly susceptible to such claims.

Joint-employer risk

Wineries and vineyard owners that use labor contractors must exercise further caution, as such contractors can be found to be joint employers with the company that hired them. Such a legal finding means that the company can be held liable for the actions of or toward the labor contractor. In practice, it means that a company can be held liable for harassment perpetrated solely by the labor contractor or the harassment by the company’s employee towards the labor contractor.

Taking precautions to prevent harassment is always less costly than dealing with harassment litigation. Once a formal complaint is lodged with the U.S. Equal Employment Opportunity Commission (EEOC) or California Department of Fair Employment and Housing (DFEH), or a lawsuit is filed, lawyers are generally required and settlement values are high. And even if the company wins, the legal fees and negative publicity have already taken their toll. Furthermore, it is not uncommon for harassment to be directed towards a subset of employees. Once one speaks up, others can follow.

Speak the language

Wineries can take several steps to prevent harassment lawsuits. First, where wineries employ a significant number of Spanish-speaking workers, written antiharassment material should be provided in both English and Spanish.

Wineries should further consider translating other material, such as documents outlining reporting procedures, posters and even employee handbooks.

Proper training

Second, it is important that the antiharassment message not only is written down and distributed but also is supported by proper training. As a preliminary matter, the law requires California companies with 50 or more employees to provide two hours of sexual-harassment prevention training to supervisors within six months of hire or promotion, and then every two years thereafter.

However, effective training should run through all levels of the winery — from the fields to the tasting room. Where workers speak primarily Spanish, such training should be provided in Spanish. Live, interactive training tends to be more effective, but there are many types of training including videos, webinars, and manuals. Training should be conducted regularly — either annually or at least every other year. These may be supplemented with less formal training or reminders throughout the year.

Training is especially important with the arrival of seasonal or temporary workers. Though they may not be there all year they are still susceptible, and even more likely, to be harassed or to be the harasser.

Proper training not only helps prevent harassment, but also can serve as a defense if a complaint does arise. Therefore, it is also important to document these trainings and retain training materials. Further safeguards may also include taking attendance at trainings to document who was there, and requiring employees to sign acknowledgements that they received and understood the training or policies.

Prompt complaint handling

Should a harassment issue arise, it is equally important to have the right avenues to receive complaints and handle them quickly. Employees should know to whom to report harassment issues, not limited to their supervisors, who could be the ones perpetrating or permitting the harassment. Employees also should feel comfortable reporting harassment and know they will not be retaliated against.

In addition, Spanish-speaking workers should have a way of easily reporting harassment — either through human resources employees who also speak Spanish or a company-provided translator.

Finally, it is critical that when complaints are received that they are acted upon quickly. An investigation should be conducted and documented in writing, and the reporting employee should be kept informed and involved in the process.

The risk of harassment can be minimized and managed. Doing so through training and appropriate responses will save money in the long-run, improve morale and foster a positive workplace environment.

Kelly Matayoshi (kmatayoshi@fbm.com) is an associate in the Employment and Business Litigation groups at Farella Braun + Martel, a law firm with offices in San Francisco and St. Helena.